2020 BREAKING NEWS: What We Know (and What We Don’t Know) About the Families First Coronavirus Response Act (FFCRA)

The wage and hour Division of the federal DOL held a town meeting today to address the Families First Coronavirus Response Act (FFCRA), and we were able to attend remotely. While many questions remain, what is clear is that there are still more questions than answers at this point.

IMPORTANT NOTE and DISCLAIMER:
We are sharing what we learned today and what we have gathered from other coordinating sources, but we do so with the limitation and clear notice that this is not to be considered legal advice and our colleagues should not rely upon this summary in order to provide legal advice.

This is a summary of the new provisions of the Families First Coronavirus Response Act (FFCRA), which is itself, a work in progress, at least with respect to how it will be interpreted and implemented. We are limited by limited information and yet, as this is such an urgent and important issue, we are sharing what we know, or think we know so far.

For the most accurate information we recommend you refer to the bill itself (H.R. 6201) and that you keep checking for the regulations and model notice from the DOL and the Treasury site (as to the applicable guidance for tax and credit issues).

DOL TOWN HALL
The presentation today, 3/20/2020, focused on two provisions of the law: Emergency Medical Leave Exemptions Act and the Emergency Paid Sick Leave. The information provided was very general, the “connectivity” for the remote access was less than optimal, many of us had problems accessing the written materials, and in the end there were far more questions than answers.
MY TAKE:
What the presentation made clear is how little anyone knows about how this law might be implemented.

THE BASICS
• We are told the effective date is 15 days after enactment (3/18/2020),
• By my count that makes the effective date April 2nd.
• The legislation “sunsets” as of 12/31/2020.
• Regulations are pending, but not ready
• The DOL hopes to have a model notice for the required Employer posting requirement in 7 days
• The Legislation generally applies to employers with fewer than 500 employees
• Employers of health care providers and of first responders are excluded
• Employers with fewer than 50 employees may be eligible for an exemptions where compliance would jeopardize the business as a going concern
• There are limitations to right to reinstatement for employers with fewer than 25 employees
• The law provides an extension to the FMLA to eligible employees working for covered employers, that would provide up to 12 weeks of leave for emergency related circumstances including the employees own illness and the need to care for others- as defined by the law
• The legislation provides wage replacement benefits under certain circumstances and in varying amounts as detailed, protection against discrimination and against termination and discipline. There are also certain rights to reinstatement.
• employers pay the wage replacement benefits in the first instance and will be eligible for repayment from the government in ways to be articulated, but likely to include tax credits.


THE DETAILS
The government is working diligently to issue regulations, but not surprisingly, they are not yet available. Indeed, the vast majority of the time spent at this town meeting was focused on receiving questions from participants. The Department of Labor representatives did not, and in fairness, probably could not, answer any of the questions posed. This was simply an effort to offer preliminary guidance in the most general of terms. It was as much an opportunity to raise questions and concerns, which will presumably be passed on to those issuing regulations at the various agencies.

In general, even absent the specific regulations, one can predict that this legislation will make use of existing regulations under the Fair Labor Standards Act and the Family Medical Leave Act. In fact, we were given an indication that in many cases, the definition sections from these regulations would be applicable to this new legislation. For example, we were directed to look to the Fair Labor Standards Act, Section 3 and to Section 101 of the FMLA for definitions and applicable terms. Indeed, keep in mind that the Emergency Medical Leave under this new legislation represents an amendment to the FMLA.

Treasury Role
We were advised that our questions posed regarding employer reimbursements, in the form of tax credits and regarding whether these payments would be subject to regular wage taxation, were being referred to the treasury department. Therefore, we understand answers, when they come, will come from various sources.

Under the circumstances, employers and employees lack critical definitions and guidance regarding implementation, rights and obligations under this new legislation. One can only be skeptical as to how this legislation can be implemented and benefits provided within 15 days under these circumstances. As I write this, I am still unable to access the materials relevant to the Town Hall that just took place. It’s clear, those who are tasked with developing guidelines for the implementation of this legislation are doing their best, but they are caught on their back foot. We will all need to stay tuned for more information.

Here’s what we think we know:
First, this legislation does not go into effect until 15 days after it’s enactment so we have a little time?

Emergency Family Leave
Who this covers-
• employees of employers with fewer than 500 workers
Who is excluded or potentially excluded or exempt
• Employers who are “healthcare providers” or who employ “emergency responders“ may elect to exclude their employees from the emergency family leave.
• Employers with less than 50 employees may be eligible for an exemption, upon showing compliance would jeopardize the business as a going concern.

Qualifying circumstances for employee eligibility:
For emergency family leave:
• Qualifying employees will be eligible for up to 12 weeks of FMLA leave if they are unable to work or telework because they have to care for a minor child if the child school or place of care has been closed, or if the child care provider of that child is unavailable due to a Coronavirus emergency.

• To be eligible, employees have to have been on the job for at least 30 days. This is an expansion of the FMLA.

Benefit Provisions:
• The first 10 days of leave under this benefit can be unpaid.
• Employees can opt to use accrued vacation days or other available paid leave for the first 10 days.
• Thereafter, qualified employees of covered employers, will be eligible for Payment of a wage replacement benefit from their employers, in an amount equal to at least 2/3 of their normal pay rate.
• This paid leave benefit is capped at $200 per day with a $10,000 maximum in the aggregate.
• In addition to wage replacement benefits during this leave, employees will be entitled to job protection and rights to restoration, subject to eligibility requirements. In general, employees who take this leave will be entitled to reinstatement. However, the right to reinstatement is subject to limitation where the employer has fewer than 25 employees.
• Employees of employers with fewer than 25 employees can be refused reinstatement for economic conditions or changes in operating conditions caused by the pandemic, assuming the employer makes “reasonable efforts” to restore the employee to an “equivalent position”.

Based on the information we were provided today, it appears that employers cannot require employees to use other paid leave time before receiving this benefit.

In addition, employers will be required to conspicuously post notice of employees right under this legislation. A model notice is expected to be available within seven days.

Emergency Sick Leave

covered entities and employees
The right to emergency paid sick leave under the act will be available for private sector employees of employers with fewer than 500 workers who cannot work or telework and who meet one of the following six qualifying requirements:
1) An employee subject to a Coronavirus quarantine or isolation order

2) An employee who has been advised by healthcare provider to self quarantine due to a Coronavirus concern;

3) An employee who is experiencing symptoms of Coronavirus and is seeking a medical diagnosis regarding the same;

4) An employee caring for an individual described in category one or two above;

5) An employee caring for a child who’s school or place of care is closed, or the child care provider of the child is unavailable, due to Coronavirus precautions; or

6) An employee who is experiencing any other substantially similar conditions specified by HHS in consultation with the Treasury and Labor Departments.

Coverage
Those who qualify will be eligible for paid sick time in an amount up to 80 hours for full-time employees and a proportional amount of paid leave equivalent to average hours worked in a two week period for part time workers.

This paid sick leave must be available for immediate use by full and part time employees regardless of tenure. (Note: this is different then the qualification for the Emergency Family Leave provision, which requires that an employee be “on the job“ for at least 30 days in order to qualify).

The amount that workers will be paid depends upon whether they are taking leave for themselves or whether they are taking time off to care for family members.
• For categories one through three (above), employees are entitled to pay in an amount up to a maximum of $511 per day with an aggregate of $5,110 total.
• For employees taking this sick leave to care for another under categories four, five and six, the maximum payment per day is $200 with an aggregate of $2,000 total.

Who Pays the Benefit
To be clear, the payment of these monies is expected to come directly from the employer. This is not a benefit being paid directly from the federal government to employees.

Employers are being told that they will be eligible for some sort of reimbursement in the form of tax credits. However, the details regarding how and when these reimbursements will be made, whether reimbursements will include interest for these payments, and whether or not these benefits will be subject to the usual wage taxes and withholdings is still not clear.

Other Protections
This new legislation also provides other protections for employees against discharge, discipline or discrimination on the basis of using or requesting these benefit and/or for providing testimony about such benefits.

Note: all public employers are covered under this legislation regardless of number of employees.

Open and Unanswered Questions

What are the standards for the granting of a hardship exemption as available for employers with fewer than 50 employees?

Are Student Workers at educational institutions eligible for this benefit?

How do these benefits apply where two parents work for the same employer?

Are the 10 calendar days of initial unpaid leave, calendar days or are they business days?

How do these benefits coordinate with previously provided benefits under existing sick leave policies?

How will these benefits coordinate with other wage replacement and leave protection legislation such as Family Medical Leave, short term disability insurance, sick leave the ADA and in New Hampshire, RSA 354-a.

Can employers take an offset for time or benefits already provided to employees under these policies and statutory provisions or does this legislation serve as an “add on“ benefit?
• NOTE: We do not have guidance as to whether or not any of these requirements will be retroactive, and how they will coordinate with benefits and/or leave that has already been provided.

How do collective-bargaining agreements apply to this benefit? (Please note that employers who participate in a multi employer CBA may meet the obligations of this legislation by paying into a multi employer fund.)

There were questions posed as to whether or not exemptions would be provided for businesses engaged in grocery and pharmacy services as they are also necessary and whether dental offices would be included under the healthcare provider exemption

The question was posed as to whether or not employers would be required to pay insurance benefit premiums as part of this legislation. (In the past, employers were not required to pay for health insurance premiums during FMLA leave, however employees must be able to resume these benefits upon return to work and thus, as a practical matter, most employers did pay.)

Can emergency family leave be taken on an intermittent basis, and if so, are there minimums for the available increments that can be taken?

CONCLUSION
Along with all of you, we will strive to keep on top of this important legislation and provide resources links and updates where we can.

Disclaimer/Legal Notice
The materials on this site are intended to provide general information only and are considered Advertising for Legal Services. Prior results do not guarantee a similar outcome. Nothing on this site is intended to create an attorney-client relationship or to provide legal advice for any particular case or situation. Users should not provide any confidential or sensitive information via email, facsimile, mail or otherwise to Rice Law Office, PLLC until an attorney-client relationship has been established, as the transmission may not be secure and is not privileged or confidential. Please note that merely sending an e-mail to our office does not create an attorney-client relationship. Such a relationship will exist only once it is confirmed in writing by Rice Law Office. Rice Law Office, PLLC may provide links to other useful websites as a convenience but does not sponsor or endorse any of the information provided on such sites.